It may not be long before President Obama is confronted with the delicate task of choosing a new justice for the Supreme Court. Indeed, given the ages of the current justices, he may have the opportunity to appoint more than one.
If and when he does, interest groups will seek to put pressure on him in support of particular candidates. In considering them, the president would do well to note the uniformity that now prevails. Daniel Meador, one of America's most distinguished law professors and a Supreme Court advocate, has written that the court today "is the least diverse court since 1789." He feels that its work has suffered as a result.
It is widely recognized that most major economic, financial, moral, and social questions that affect the country are ultimately decided by the court's nine justices.
In the past 50 years, they have arguably decided the fates of three presidents. The 1971 decision in New York Times v. the United States indirectly led to the resignation of President Nixon; their decision in Bush v. Gore resulted in the election of President Bush in 2000, and their decision in 1954 in Brown v. Board of Education declaring the "separate but equal doctrine" unconstitutional, paved the way for Mr. Obama to become president 55 years later.
In the 19th century, the court's decision in the Dred Scott case led directly to the Civil War.
Many factors contribute to the power of the court, but three are especially crucial. First, the court holds the power to rule that an act of Congress or of the president is unconstitutional. Second, any person who has been adversely affected by a law or an executive act can challenge it as unconstitutional. Third, the Constitution itself contains elastic terms, such as due process of law which allow it to evolve.
Yet, despite the power of the nine unelected justices to make ultimate decisions on vital public issues, it is a curious fact that few members of the public or the press, or even of the legal profession, can name more than one or two, if any, of them. They are appointed by the president and must be confirmed by the Senate. If confirmed, they have life tenure. Because they wield such vast power and are virtually unaccountable, it is vital that they possess not only intellectual and legal qualifications, but also that they reflect the nation's diversity.
Today, seven of the current judges come from the Eastern Seaboard. Six are graduates of Harvard Law School. As for professional background, all nine were on appeals courts before being appointed to the Supreme Court. Despite the fact that women make up half the population and almost half of the legal profession, only one of the nine judges is a woman.
As Professor Meador has emphasized, the makeup of today's court contrasts sharply with those of the past. Between 1940 and 1970, the court included four former senators, a former member of the House of Representatives, three former state governors, five former attorneys general, a former secretary of the Treasury, and a former secretary of Labor.
Justice Hugo Black, who died in 1971, was the last Supreme Court justice to have served in Congress. Justice Lewis Powell, who retired in 1987, was the last to have been a practicing lawyer when he was appointed.
The court is a national institution and should reflect the diversity of the country. Different educational, professional, social, and geographical backgrounds yield varying legal and social perspectives and are more likely to enrich judicial decision-making. If justice is nothing more than "social happiness," as one legal philosopher has put it, then it is more likely to be achieved in a multiethnic, multicultural nation if that reality is reflected in its institutions.
The fact that two-thirds of the current justices have come from a single educational institution is, as Meador suggests, not politically or socially desirable and evokes the danger of an elitist "old boy network" incompatible with American values.
Nicholas Katzenbach, the deputy attorney general under President Kennedy, recently has written of how Paul Freund, the foremost scholar of the Supreme Court at the time, was considered by Kennedy for his first Supreme Court appointment, only to be rejected, despite his superb qualifications, just because he was from Harvard. Kennedy felt that it would appear that too many of his appointments were coming from one university.
A few decades ago, it was plausible to argue that there were not enough qualified women in the legal profession to achieve gender balance at the Supreme Court. That is not true today, and women are woefully underrepresented on the court. In its entire history, there have only been two women justices; Sandra Day O'Connor was appointed by President Reagan in 1981 and retired in 2006. Ruth Bader Ginsburg was appointed in 1993 by President Clinton. A more representative court would include four or five women judges.
As Justice Oliver Wendell Holmes, who served from 1902 until 1932, observed of the court, "We are very quiet there, but it is the quiet of the storm center." Because the nine largely anonymous justices sit at the center of the storm and are the final arbiters of power, the value of a wide spectrum of perspectives can hardly be overstated.